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I. Commonly Claimed Tort Damages/Methods of Proof

A. Introduction

Tort damages are those damages that proximately flow from the commission of a civil wrong by one or more tortfeasors. Typically, we are referring to damages to the person, not property damages or injunctive relief. However, medical bills and lost wages that result from the physical injury to the plaintiff are properly considered to be “tort damages” as well.

Listed below are the most commonly claimed personal injury damages and how they are presented and “proved” at trial. Section Two of this paper addresses some of the ways in which they can be effectively portrayed at trial.

B. Tort Damages Commonly Claimed

1. Is It Related?

Before you make a claim for a personal injury, make sure it can be related to the tort itself. Generally speaking, a physician must testify that the injury is “probably” related to the accident/tort. Levesque v. Regional Medical Center Board, 612 So.2d 445 (Ala. 1993). That it is “possibly” related or “could be” is insufficient. However, if there are other factors, such as the injury occurring close in time to the accident or tort, causation may be established. Weaver v. Shoals Pest Control, 659 So.2d 1 (Ala. 1994).

Opposing attorneys frequently seek to cross-examine the doctor by using the “reasonable degree of medical certainty” language. This is not and has never been the standard in Alabama law as it pertains to “proving” an injury.

2. Permanent Injury/Disfigurement

This item of damage is self-explanatory. Some physical injury has produced a condition that is permanent in nature. Examples of such an injury include: quadriplegia, traumatic brain injury, amputations, scarring, surgery resulting in the placement of hardware or a decreased range of motion, decreased vision, muscle damage, etc.

With all tort damages, make sure they are specifically pled in the Complaint. Even under Alabama’s liberal pleading rules, tort damages/injuries should be pled with particularity to avoid problems at trial. See generally Eternal Rest Cemetery v. Pugh, 366 So.2d 1113 (Ala. 1999).

With any permanent injury, the deposition of the primary treating physician should be taken after the plaintiff has reached maximum medical improvement. Prior to the deposition, a narrative request should be sent to the physician seeking a prognosis and any resulting numerical, impairment ratings (e.g. 15% to the body as a whole). During the course of the deposition, any work restrictions placed on the plaintiff should be addressed for future use by your vocational expert if you intend to claim lost wages.

3. Pain & Suffering

This is really the flip-side of the coin from mental anguish. Pain and suffering can result from either a permanent or a non-permanent injury. In physical injury cases, it is presumed that pain and suffering has and/or will manifest itself as the result of a physical injury. Unlike a permanent injury or physical impairment, no expert testimony is needed to establish pain and suffering (although it certainly does not hurt). See Carnival Cruise Lines v. Snoddy, 457 So.2d 379 (Ala. 1984).

The measure of damages for pain and suffering is up to the discretion of the jury. Delchamps v. Bryant, 1999 WL 236499 (Ala.). It will not be subject to remittitur absent a showing of passion or prejudice by the jury.

4. Mental Anguish

Traditionally, mental anguish damages could only be recovered under a tort theory. A similar recovery under a breach of contract theory was allowed only in those limited situations where it was foreseeable that the breach would necessarily result in emotional anguish and a disturbance of solicitude. (See dissent in White Consolidated Industries, Inc. v. Wilkerson, 1999 WL 236498 (Ala.), for an excellent discussion by Justice Johnstone).

Under common law there had to be a physical injury before mental anguish damages could be recovered. In Taylor v. Baptist Medical Center, 400 So.2d 369 (Ala. 1981), the Court abrogated this rule and allowed such damages even when no actual physical injury was claimed.

Recent case law has significantly narrowed mental anguish recoveries in non-physical injury situations. In White Consol. Indus., Inc. v. Wilkerson, 737 So.2d 447 (Ala. 1999), the Court ruled that a plaintiff could not recover mental anguish damages under the Alabama Extended Manufacture’s Liability Doctrine where only property damage occurred. They even admitted that the claim was based in tort. This decision is a retreat from Taylor.

A mere four months earlier, the Court affirmed a $2 million dollar verdict for a mortuary company in which there was no physical injury to the widower of the decedent. Gray Brown-Service, Inc. v. Lloyd, 729 So.2d 280 (Ala. 1999). In Lloyd, the Court focused on the burden of proof rather than the recoverability of mental anguish damages itself. Apparently, mental anguish is presumed in cases involving solicitude of the deceased.

In K-Mart v. Kyles, 723 So.2d 572 (Ala. 1998), the Court flatly held that a physical injury is not a prerequisite to a recovery for mental anguish (apparently following Taylor). However, they adopted a “strict scrutiny” standard that essentially requires a non-physically injured plaintiff to take the stand (or have a friend or psychologist to take the stand) and testify as to her mental anguish. A more recent case has reaffirmed the principle that the strict scrutiny approach does not apply to cases involving physical injury. Daniels v. East Alabama Paving, Inc., 1999 WL 359410 (Ala.). To be on the safe side, mental anguish testimony should come from someone to avoid a remittitur, whether there is a physical injury or not.

5. Lost Wages

Lost wages are simply those wages or income that are lost as a direct result of the inability to work. The use of an economist, while not necessary, is invaluable when the injury is catastrophic in nature.

If lost wages are claimed in the future as well, the use of a vocational expert is usually advisable. If the plaintiff is disabled, simply extrapolate the total wages expected to have been earned (but for the injury) to age 65, and multiply it by the vocational disability to determine the lost wages. For example, if the plaintiff has an 87% vocational disability, simply multiply it by the total amount plaintiff would have earned in the remaining years in the work force.

If lost wages are claimed, the defendant will seek to discovery and is entitled to copies of the plaintiff’s tax returns. Make sure the amounts claimed at trial are consistent with pre-injury wages and not “over-reaching”, or you and your client will lose credibility.

6. Medical Bills

This is a tricky area. One would expect to simply mark the bills and offer them into evidence. It is much more vigorous than that, however.

There are essentially three (3) requirements for “proving” medical bills at trial: (a) authentication, (b) reasonableness, and (c) necessity.

Authentication is usually fairly easy. Either have your client testify he received the bill, have the primary physician identify the bill in deposition, or have it subpoenaed to the courthouse for trial, properly sealed and attested to by the hospital custodian. Jackson v. Brown, 268 So.2d 837 (Ala. 1972).

The reasonableness hurdle is usually handled by the practitioner by deposing the physician whose services necessitated the treatment. Although, defense attorneys religiously object to a doctor asserting that a hospital’s bill is “reasonable”, it is admissible and competent evidence. Dairyland Insurance Company v. Jackson, 566 So.2d 723 (Ala. 1990).

It is also a good idea to forward requests for admissions to the defense attorney well in advance of trial seeking admittance that the bills are reasonable. Rule 37 of the Rules of Procedure allows the Plaintiff’s attorney to be reimbursed for any out-of-pocket expenses incurred in “proving” the bills, including deposing physicians.

Remember, the plaintiff can not testify as to the reasonableness of the bills. The Court has long required expert testimony on this issue. Jackson v. Brown, 268 So.2d 837 (Ala. 1972). As a result, I always list the custodian of the hospital as an expert witness to be called at trial so I do not have any problems with the bills’ admittance into evidence.

The “necessity” requirement is easy. Simply ask the treating physician(s) whether his treatment (and the hospital’s) was “medically necessary”. He will be more than happy to deny that he performed unnecessary surgery on your plaintiff.

7. Punitive Damages

With our current Court in Montgomery, the issue of punitive damages is not as prevalent as it once was. I sincerely hope that the recent tort reform legislation has resolved any significant future issues of the amount of punitives a jury can award.

Briefly stated, punitive (or exemplary) damages are recoverable when there is clear and convincing evidence of oppression, malice, wantonness or fraud. Ala. Code §6-11-20. Of course, punitive damages are allowed in wrongful death cases under a theory of simple negligence.

Generally speaking, I do not advise seeking punitive damage if you have a weak case because you are asking for an appeal and a remittitur. Juries will usually “beef-up” the compensatory damages in lieu of awarding punitives.

The caps placed on punitive damages by the recent legislative session are as follows:

$50,000 cap on punitive damages against a “small business”

$1,500,000 cap on punitive damages against all other defendants, or three times compensatory damages, whichever is greater. Ala. Code §6-11-21.

The jury, of course, is not to be informed of these limitations.

“Small business” means a business with a net worth of $2,000,000 or less at the time of the occurrence made the basis of the suit. Id.

The section of the new law that is most frightening is (i): “Nothing herein shall be construed . . . to limit the duty of the Court . . . to order remittitur where appropriate. This section means we can expect more and more cutting of verdicts by the current court. I had originally hoped that the new caps would put an end to remittiturs under the belief that the Court would not cut legislatively condoned punitive damages. Section (i) has dashed my hopes on this issue.

Thankfully, the new law does not apply to wrongful death cases or actions for intentional conduct. However, the Court can still cut a death verdict if they feel it is excessive, as they have repeatedly done in recent months.

II. Effective Portrayal and Representation of Damages at Trial

A. Use of Experts

Outside the obvious use of treating physicians, other experts are invaluable at trial. These include vocational experts, economists, physical therapists, life-care planners and psychologists, all of which have to be specially retained by plaintiff’s attorney. While none of these experts may be needed in a “whippy-whippy” injury case, their use in catastrophic injury cases is a necessity, particularly with regard to future medical expenses and care.

B. Day-In-The-Life Video

This is a permissible and powerful tool in any significant injury case. With a proper foundation laid, the video is admissible. Ellingwood v. Stephens, 564 So.2d 932 (Ala. 1990). Care should be taken with what is shown in the video. For example, in the situation of a quadriplegic, too many shots of their personalized van, motorized wheelchair and their brother’s Corvette in the yard, may lead the jury to suspect government subsidization of the plaintiff. Care should also be taken not to “overdo” it with the jury. Too much gruesomeness or pitifulness may actually backfire.

C. Golden Rule Argument/Not Allowed

This is perhaps the silliest evidentiary rule for closing arguments. We all know from law school that you are not allowed to ask the jury to put themselves into the plaintiff’s shoes. Of course, this is exactly the goal of any good attorney. If properly done, the result can be obtained without drawing an objection by opposing counsel. Be careful, however, since an improper argument may form the basis for a remittitur. Lance v. Ramanauskas, 731 So.2d 1204 (Ala. 1999).

D. Use of Medical Exhibits

A picture says a thousand words. The use of medical diagrams and pictures of the human anatomy are a necessity at any doctor's’ deposition as well as at trial. There are numerous companies that sell diagrams, spines, eye-models, etc., for a reasonable price.

E. Video Depositions

Depositions read to a jury are boring. Always video the primary physician’s deposition and use your diagrams effectively therein. To be on the safe side, file a motion to video tape all medical depositions.

Do not depose the doctor ad nauseam. Stick with the “zingers” and make the key points necessary. Dramatic pauses and key exhibits in a 20 minute deposition will serve you much better than an hour long deposition that the jury will pay very little attention to.

F. Per Diem Argument

This is the old argument wherein the plaintiff’s attorney argues how much money a day the plaintiff should receive for his injury and then adds it up on the blackboard. It is allowed by law and can be quite effective.

G. Plaintiff’s Testimony/Don’t Go Too Far!

Jury’s do not respond well to a malingering, whining plaintiff who has made no effort to return to work or mitigate damages. Unlike plaintiff’s who are brain-damaged or paralyzed, it is a potential mine-field to direct an examination of a plaintiff who is primarily interested in his lawsuit recovery and exaggerating the extent of his injuries. I rarely, if ever, elicit substantive testimony about an injury from a plaintiff. Let the spouse, physician and experts handle this. If at all possible, limit the plaintiff’s testimony to the facts of the accident and cover the injury itself with a “broad brush”.

H. Bring The Injury Home!

In a jury vacuum, jurors can rarely, properly empathize with a severely injured plaintiff. While skirting around the “golden rule” argument, try to convey the true nature of the injury by establishing the contrast between what the jurors do on a daily basis and what the plaintiff can not do. For example, if your client is missing an arm or is paralyzed from the neck down, read a laundry list of those things she can no longer perform, such as:

tie her shoes

tie her husband’s tie

pick up her son

cut a loaf of bread

open a jar of mayonnaise

button her blouse

ride a bike

blow-dry her hair

eat corn on the cob

cut a steak

After reading this list off to the jury, you will have penetrated them beyond any conclusory statements you could ever make to the jury.

If your client has visible injuries or scars, let the jury see them. Do not shove the injury down their throat, but if your client has tremendous scarring on his back, have him remove his shirt and show them. (Right after the first juror looks away, you may get another, bigger offer of settlement from the opposing attorney).

I. Pre-existing Injuries

Many lawyers shy away from litigating, for example, car wreck cases where there is an exacerbation or aggravation of a pre-existing injury (i.e., osteoporosis of the spine). The law is clear that the tortfeasor is still responsible for the “total injury”. If successfully argued, the jury will not substantially deduct from the recovery solely because some of the injury is not traceable to the defendant’s conduct.

III. Conclusion

The failure of any attorney to properly claim and prove legally recoverable damages at trial can result in a malpractice claim or a grievance. Always make a list of your claimed damages before trial and make sure each category is satisfactorily “proven” before you proceed. It is also a good idea to prepare a trial brief (short and capable of being read by the judge in a few minutes) for every item of claimed damages that will foreseeably draw an objection from the opposing attorney.